[00:00:00] Speaker 02: The next case this morning is United States versus Rudolph, 23-1278. [00:00:06] Speaker 02: Council for Appellant, if you'll make your appearance and proceed, please. [00:00:09] Speaker 03: Thank you, Your Honor. [00:00:10] Speaker 03: May it please the Court? [00:00:11] Speaker 03: My name is David Marcus, and along with Lauren Doyle Perez and Margo Moss, we represent Larry Rudolph in this matter. [00:00:19] Speaker 03: I'm going to attempt to reserve three minutes for rebuttal. [00:00:23] Speaker 03: This is no ordinary severance appeal. [00:00:26] Speaker 03: Not only was Mr. Rudolph denied the ability to call a crucial defense witness that would have undermined a supposed confession, but the jury was also subjected to testimony and argument that it would not have heard if Mr. Rudolph was tried on his own. [00:00:45] Speaker 02: Let me ask you a quick threshold question about that. [00:00:49] Speaker 02: I noticed in your briefing below that there was focus on the question of jointer, proper or not. [00:00:56] Speaker 02: I didn't get that same focus in your appellate brief. [00:00:59] Speaker 02: Are you zeroing in on the question of severance? [00:01:03] Speaker 03: Yes, Your Honor, we are. [00:01:04] Speaker 03: We're focused on severance. [00:01:05] Speaker 03: We don't believe that Joinder was proper, but for purposes of the severance argument, we don't need to go there, and I don't think we need to engage in that debate. [00:01:14] Speaker 03: I will say that the four counts of perjury, the government almost conceded below that that was improperly joined, but I don't think we need to get there, Your Honor. [00:01:25] Speaker 03: So the government's arguments at trial, they argued two primary things. [00:01:29] Speaker 03: First, that a bartender heard Larry Rudolph confess to Laurie Milliron. [00:01:35] Speaker 03: And second, that Larry's motive of murder was that Laurie Milliron gave Larry an ultimatum to leave his wife and that he did not want to divorce his wife. [00:01:46] Speaker 03: Without a severance, we couldn't combat the confession testimony. [00:01:50] Speaker 01: What about the limiting instruction? [00:01:54] Speaker 03: Right, so the limiting instruction goes to the second area of these two witnesses that came in, Anders and Grimley. [00:02:02] Speaker 03: And the limiting instruction had nothing to do with the bartender part, the confession part. [00:02:06] Speaker 03: It was the second prong of the severance that had Rudolph been tried separately, the jury wouldn't have heard these two witnesses. [00:02:15] Speaker 03: And the problem with the jury instruction, usually jury instructions, we presume they work, right? [00:02:21] Speaker 03: But in this case, they didn't for a number of reasons. [00:02:24] Speaker 03: One, the evidence was so intertwined. [00:02:28] Speaker 03: It was the motive evidence for the murder that would have been kept out. [00:02:33] Speaker 03: The Anders and Grimley testimony was the motive evidence. [00:02:37] Speaker 03: Second, the judge really showed disdain for the instruction when he was required to give it. [00:02:45] Speaker 03: First, he said, here we go again. [00:02:47] Speaker 01: Well, he said he was saying that in jest. [00:02:52] Speaker 01: observe and reflect to the jury that maybe that was not the best statement, but he did try to fix it. [00:02:58] Speaker 03: He did try to fix that one statement, but he also said on another occasion, I'm only giving this instruction because the government is not objecting to it. [00:03:08] Speaker 03: he did show the jury this instruction that he had to repeat eight, I think eight or nine times. [00:03:14] Speaker 03: And anyone who's ever been in a trial court knows that when you have to repeat an instruction that many times, there's a problem. [00:03:22] Speaker 03: But the final point, and I think this is the most important point about the jury instruction issue, Your Honor, is that the government tried to capitalize on this testimony in its closing argument, in its rebuttal argument. [00:03:35] Speaker 03: focused on the motive evidence that was only admissible as to Ms. [00:03:40] Speaker 03: Milliron. [00:03:41] Speaker 03: It focused on that with respect to Larry Rudolph. [00:03:45] Speaker 03: So I can read some of the parts of that closing, which is in volume 19 at page 4930. [00:03:52] Speaker 03: For example, the government said, this is a case about the defendant's loss of control. [00:03:59] Speaker 03: It was about a man who was running out of ways to control his mistress, to get back control by murdering his wife. [00:04:07] Speaker 03: That is directly from the grimly testimony that would not have come in at a separate trial. [00:04:13] Speaker 03: There's many more of those statements. [00:04:16] Speaker 03: I'll give one more, but these are all in our reply brief. [00:04:20] Speaker 03: Milliron was asked about the affair, the money, the change in lifestyle after Bianca's death, the ultimatum, the confession. [00:04:27] Speaker 03: This is the key part. [00:04:28] Speaker 03: The government says all key aspects to the case against Lawrence Rudolph. [00:04:33] Speaker 03: Talking about the Grimley and Anders testimony that would not have come in at a separate trial, the rebuttal closing when we can't get back up, they're focused on [00:04:44] Speaker 03: This is key evidence against Larry Rudolph. [00:04:47] Speaker 03: So the judge could have instructed a hundred times. [00:04:49] Speaker 03: He gave eight instructions. [00:04:50] Speaker 03: But if the government's using that evidence in its rebuttal to try to make its case against Larry Rudolph, there's a big problem there. [00:04:59] Speaker 03: The instruction is not going to be effective. [00:05:01] Speaker 02: Why isn't there a problem about the sufficiency of [00:05:05] Speaker 02: the argument for severance below. [00:05:08] Speaker 02: I mean, we're talking about what would presumably be the after effects of the fact that there was a joint trial, but as recently as this morning, I revisited again the affidavit from Ms. [00:05:19] Speaker 02: Milliron, and there was not a lot to that. [00:05:23] Speaker 02: I will respond, I will reject these statements, and the statements weren't even mentioned that she was going to reject. [00:05:31] Speaker 03: So I just want to be very clear. [00:05:33] Speaker 03: What I was just reading from, Your Honor, and the argument and the instruction that Judge Rossman was asking about, that deals with the Anders and Grimley testimony that would not have come in. [00:05:43] Speaker 03: Not the affidavit. [00:05:44] Speaker 03: The affidavit deals with the bartender testimony. [00:05:48] Speaker 03: The testimony from the bartender about the supposed confession. [00:05:52] Speaker 03: There were two reasons. [00:05:53] Speaker 02: I thought the affidavit went beyond the bartender testimony. [00:05:56] Speaker 02: You talked about additional, there were two people who the bartender had the affidavit related to. [00:06:03] Speaker 03: Correct, Your Honor. [00:06:04] Speaker 03: You're right. [00:06:05] Speaker 03: But the point that the government makes, which is an interesting one, is remember that [00:06:09] Speaker 03: If there were separate trials, the Anders testimony does not come in at a separate trial against Rudolph. [00:06:16] Speaker 03: So the affidavit does not need to undermine the Grimley testimony. [00:06:21] Speaker 03: It's not required because the government concedes below and on appeal that the Anders testimony would not have come in at a separate trial. [00:06:31] Speaker 03: As to the bartender testimony, and this is really important, [00:06:37] Speaker 03: Everybody agrees to the surrounding facts, Chief Judge Holmes. [00:06:41] Speaker 03: So unlike a lot of the cases, like your case and personally that you wrote, and some of the other ones, in this case, the government agrees that Laurie Milliron was in the bar, heard whatever was said, and was in the best position to hear what was said. [00:06:55] Speaker 03: Those facts are agreed to by the government. [00:06:59] Speaker 03: So the only question is, [00:07:01] Speaker 03: Was her affidavit specific enough about contesting the confession on the bartender to satisfy the cases from the 10th Circuit McDonald and the other cases? [00:07:11] Speaker 02: And why isn't that a real issue? [00:07:13] Speaker 02: One. [00:07:14] Speaker 02: Two, the affidavit was conditional, which is another issue. [00:07:17] Speaker 02: When you read it, it essentially, it is much as says, if I'm tried first, once I'm acquitted, then I will testify in this trial. [00:07:26] Speaker 02: Why isn't that a problem? [00:07:28] Speaker 02: I'll address both. [00:07:29] Speaker 03: Yes, please. [00:07:30] Speaker 03: The first one is whether it's specific enough. [00:07:32] Speaker 03: To me, what we're talking about is two words that were left out of the affidavit, which is everybody agrees that Mr. Rudolph said the end part of the statement. [00:07:44] Speaker 03: The question is, what did he say at the beginning? [00:07:49] Speaker 03: Rudolph and Milliron said that he says, they're saying I killed my wife for you. [00:07:54] Speaker 03: And so the bartender admits that he didn't hear the beginning part. [00:07:59] Speaker 03: The only question is what are those two words and should those have been in the affidavit? [00:08:04] Speaker 03: And we offered the judge in our motion. [00:08:07] Speaker 02: Were there any words in the affidavit in terms of what the bartender would have said? [00:08:12] Speaker 03: Well, the bartender, everybody agrees that the bartender said he heard... No, no, no, that's not my question. [00:08:19] Speaker 02: My question is, in the affidavit, did she say, this is the testimony, this is the testimony that I will rebut? [00:08:27] Speaker 03: She said, and she said, I've read the discovery, the discovery says the bartender heard a confession, and Larry Rudolph did not confess. [00:08:39] Speaker 03: And let me just add to that point because, again, this is really important. [00:08:43] Speaker 03: In our motion for severance, we offered, and she read it and agreed to it, to submit to an ex parte proceeding with Judge Martinez to explain any details that were needed. [00:08:57] Speaker 02: Why would that be necessary? [00:08:59] Speaker 02: I mean, why would the judge have to hear that? [00:09:01] Speaker 02: I mean, this is your shot. [00:09:03] Speaker 02: As in most litigation, you have your shot. [00:09:05] Speaker 02: Your shot is, here's the motion. [00:09:07] Speaker 02: I'm doing a severance motion. [00:09:09] Speaker 02: This is what I'm going to put forward to support the severance. [00:09:12] Speaker 02: Why would Judge Martinez need to have supplemental information provided? [00:09:17] Speaker 02: Why couldn't she be more specific about what she would say and what she would rebut? [00:09:21] Speaker 02: As I said, I read it this morning, and there's not a whole lot of meat in that. [00:09:25] Speaker 03: Well, I think for a couple reasons. [00:09:27] Speaker 03: One is, you know, the defense, remember, has not heard the testimony of the bartender yet. [00:09:32] Speaker 03: We haven't been to trial. [00:09:33] Speaker 03: There's no depositions in a federal criminal case. [00:09:36] Speaker 03: All we had was a report that explained that Larry supposedly confessed at the bar. [00:09:43] Speaker 03: What the parties agreed to is that there's only one other person who heard it, Laurie Milliron. [00:09:49] Speaker 03: She was in a better position to hear it. [00:09:50] Speaker 03: And she said, no, there was no confession at the bar. [00:09:54] Speaker 03: I can testify to that. [00:09:55] Speaker 03: As to your point on conditional, and this is a point the government stresses in its brief about that it was a conditional, there is nothing in her affidavit that's conditional. [00:10:05] Speaker 03: What she says is, [00:10:08] Speaker 03: If the allegations and charges against me were tried separately from Larry's case, I would be able to testify at Larry's trial to correct Ms. [00:10:16] Speaker 03: Grimley's and the bartender's false misleading and confused recollections of what they think they heard me and or Larry say. [00:10:24] Speaker 03: I'm very sure the jury would believe me over those witnesses and she goes on. [00:10:28] Speaker 03: The motion itself is conditional. [00:10:31] Speaker 03: So we filed a motion and we said the proper order if you're going to grant the severance is to have her trial first. [00:10:38] Speaker 03: And you're saying we should ignore that? [00:10:39] Speaker 03: No, but the question from the cases, Your Honor, is whether her proposed testimony was conditional. [00:10:47] Speaker 03: It was not. [00:10:48] Speaker 01: Well, the district court made a finding that her willingness to testify was predicated on her being tried first. [00:10:53] Speaker 03: And that was wrong. [00:10:54] Speaker 03: I mean, that was wrong, Your Honor. [00:10:55] Speaker 03: It was not. [00:10:56] Speaker 02: She does not say wrongs not good enough I mean it would have to be clear error and and the clear error talks about the notion of is there no plausible basis in the record well there is a plausible basis in the record I mean the way the way that affidavit no the affidavit doesn't speak conditionally but the person who's in the position to propound the severance says that's what we should view this as being which is mr. Rudolph [00:11:23] Speaker 03: We in our motion say if the severance is granted, this is the proper order, which by the way, Your Honor, it is the proper order. [00:11:31] Speaker 03: That's not the question. [00:11:32] Speaker 03: I understand. [00:11:33] Speaker 03: I understand. [00:11:34] Speaker 03: The question is, was her testimony offered as a conditional testimony? [00:11:38] Speaker 03: It was not. [00:11:39] Speaker 03: Her affidavit is not conditional. [00:11:41] Speaker 03: The lawyers say, here, Your Honor, is the proper procedure for how to go forward. [00:11:47] Speaker 03: And the judge took our proper procedure legal position as her factual affidavit being conditional. [00:11:55] Speaker 01: But she uses the language of conditionality in the last paragraph of her affidavit. [00:12:01] Speaker 01: And so if that were not there, I would agree with you that she would say, I would be able to testify at Larry's trial, et cetera. [00:12:07] Speaker 01: But she conditions this. [00:12:09] Speaker 01: And it seems that we're constrained by our case McConnell that suggests, or I think more than suggests, that any type of conditionality cuts against your position. [00:12:23] Speaker 03: Well, I just want to make sure I understand. [00:12:25] Speaker 03: So is your Honor's position that when she says I would be able to testify, that's conditional? [00:12:29] Speaker 03: Because if that's the case, I don't think. [00:12:31] Speaker 01: No, if the allegations and charges against me [00:12:34] Speaker 01: were tried separately from Larry's case, I would be able to testify and so forth. [00:12:38] Speaker 01: So there's some condition in terms of how she's understanding. [00:12:43] Speaker 01: when she would be available, when she would testify? [00:12:46] Speaker 03: Oh, no, I disagree, Your Honor. [00:12:48] Speaker 03: So all she's saying there is that if we're tried together, I can't testify. [00:12:52] Speaker 03: And if we're tried separately, I will testify. [00:12:54] Speaker 03: I can testify. [00:12:56] Speaker 03: If I'm subpoenaed, I would testify. [00:12:58] Speaker 03: And so there's no condition there. [00:13:00] Speaker 03: McConnell and all the other cases all talk about, yes, if the cases are tried [00:13:05] Speaker 03: Together, she can invoke her fifth, and if they're tried separately, no. [00:13:09] Speaker 03: So that is not a condition under McConnell and personally in the other cases. [00:13:13] Speaker 00: Well, the cases also talk about what counsel represents on behalf of the witness. [00:13:19] Speaker 00: And here, you represented in your severance motion that once Lori's speedy trial puts these trumped up charges behind her, she will again have nothing to fear from testifying. [00:13:29] Speaker 00: And you specifically said her trial should come first. [00:13:34] Speaker 00: The case law that you cite would indicate that the district court was perfectly appropriate and correct in considering what you said should happen. [00:13:44] Speaker 00: She should be tried first and then she can testify. [00:13:48] Speaker 00: And then you've got her conditional language in paragraph nine going right along with that. [00:13:53] Speaker 00: How was that error? [00:13:54] Speaker 00: How was that clear error on the part of the district court? [00:13:56] Speaker 03: Right. [00:13:56] Speaker 03: Well, two things. [00:13:57] Speaker 03: One, I don't think paragraph nine is conditional, but as to what... [00:14:01] Speaker 00: Let's say we disagree. [00:14:03] Speaker 03: Yeah, as to as to what is in the motion again, I think I mean, I think we've we've laid out our position on this, your honor, which is what is in our motion is not conditional for her and it is the proper procedure for how it should proceed. [00:14:16] Speaker 03: So I see my time's running. [00:14:18] Speaker 03: I really wanted to hit these other issues. [00:14:19] Speaker 03: I will say a couple of points about the other issues. [00:14:21] Speaker 03: One is on the Olmstead [00:14:23] Speaker 03: hearsay, the only thing I'll say about that is the parties agree, they made a lot of waiver arguments, but the parties agree that the key statement, the ultimatum statement, was not waived below or on appeal. [00:14:38] Speaker 03: So that should have been excluded under 804b6. [00:14:42] Speaker 03: On the venue issue, all I'll say is it just can't be the law that first brought me in someone living in the United States for five years. [00:14:51] Speaker 03: The government knows where he is and then lets him leave and then brings him to Denver. [00:14:55] Speaker 03: That can't be what was meant by the venue statute. [00:14:59] Speaker 03: And finally, on the forfeiture point, [00:15:02] Speaker 03: is that the government raises this new argument derived from on appeal, but the statute says derived from proceeds traceable to an offense, and here they were not able to show anything traced to the offense. [00:15:15] Speaker 02: Let me ask you this question. [00:15:16] Speaker 02: If you prevail on your forfeiture argument, [00:15:20] Speaker 02: Do you agree that the correct outcome would be a remand for under the substitute property provision for the specific amount of the insurance policy? [00:15:31] Speaker 02: Yes, sir. [00:15:32] Speaker 02: Okay. [00:15:33] Speaker 02: And I'll give you a little time in rebuttal, so think about it. [00:15:36] Speaker 02: Thank you. [00:15:37] Speaker 02: I will. [00:15:37] Speaker 02: Please, Mr. Bruell. [00:15:43] Speaker 04: It pleases the court, Bishop Grewell on behalf of the United States. [00:15:46] Speaker 04: I want to correct a couple things about the record. [00:15:48] Speaker 04: First of all, the judge only made that comment once in front of the jury. [00:15:51] Speaker 04: The second comment was at a sidebar. [00:15:53] Speaker 04: The jury did not get the comment about if it wasn't for the government's objection, I wouldn't give the instruction. [00:15:59] Speaker 04: Secondly, when he's talking about the closing arguments, [00:16:02] Speaker 04: The one at 4930, where the government's saying this is a key aspect of the case against Lawrence Rudolph, it's very clear if you read that, that isn't talking about the materiality for her perjury charges. [00:16:14] Speaker 04: The government made clear, we're turning to Laurie, now let's talk about her perjury charges, materiality is an issue, and that's the only place it says, and those were key aspects of the case against him. [00:16:25] Speaker 04: And so it was talking about the materiality, it was not talking about trying to make the case against him. [00:16:30] Speaker 04: regarding his charges. [00:16:31] Speaker 04: 50-12, losing control, that is based on her getting her own bank account for the first time that was in the record and also the statements to Olmsted that she was going to confront him and ask him to fire his wife or fire his mistress and end the affair. [00:16:50] Speaker 04: It was not necessarily based on Anders or Grimley or any of that testimony. [00:16:56] Speaker 04: The defendants were obviously properly joined. [00:16:59] Speaker 04: An accessory is always properly joined with the offense that they were an accessory to. [00:17:04] Speaker 01: But proper joiner is not a response to severance, right? [00:17:07] Speaker 04: Correct. [00:17:08] Speaker 04: But once we have joiner, the burden is extremely high. [00:17:11] Speaker 04: And they have to make a strong showing of prejudice that requires them both to show that there's actual prejudice outweighing the expense and inconvenience of the two trials and that less drastic means such as jury instructions and the like could not prove that prejudice. [00:17:23] Speaker 04: And here, the expense was [00:17:24] Speaker 04: sky-high. [00:17:26] Speaker 04: We had 30 domestic and international witnesses, a three-week trial. [00:17:30] Speaker 04: This was during COVID. [00:17:31] Speaker 04: It simply didn't make sense to have two separate trials to prove the exact same murder. [00:17:37] Speaker 01: I appreciate the judicial economy argument. [00:17:41] Speaker 01: I think it's prevalent in almost every case, but it's especially prevalent here. [00:17:47] Speaker 01: My trouble here is [00:17:49] Speaker 01: I'm trying to understand whether the district court, when it was originally considering the motion to sever, and dropped a footnote that said that when, that seemed to me that it was suggesting, well, the antidote to this problem is Mr. Rudolph can just testify. [00:18:10] Speaker 01: And that suggested to me that the district court was, [00:18:16] Speaker 01: operating under the assumption that constitutional rights are fungible and exchangeable, and that Mr. Rudolph can exchange his Fifth Amendment right for his right to present a complete defense. [00:18:28] Speaker 01: So I wanted to get the government's position on that. [00:18:31] Speaker 01: And I have two questions. [00:18:32] Speaker 01: Do you agree with my reading that that informed the district court's decision? [00:18:37] Speaker 01: It dropped a footnote. [00:18:37] Speaker 01: So do you agree with my reading of the record? [00:18:40] Speaker 01: And then if you do agree with my reading of the record, why isn't that reversible air? [00:18:45] Speaker 04: So I don't think I agree with your reading the record. [00:18:47] Speaker 04: There is the footnote that is correct, but I think it's quite clear that that was just an aside. [00:18:51] Speaker 04: It was not at all the basis for the district court's ruling. [00:18:55] Speaker 04: I think the district court was talking all about the value of Ms. [00:18:59] Speaker 04: Milliron's testimony, the expense and inconvenience, the impeachment that would be against her, the conditional offer. [00:19:05] Speaker 04: It was all those factors that are ordinarily considered. [00:19:07] Speaker 04: Second, I think, I'm unaware of any case law that says that the court couldn't make that a basis, and what I would suggest is defendants are often forced to make hard choices between things. [00:19:21] Speaker 04: But even if it were, even if it were, and even if that was the basis for the ruling, I think it would be harmless for all of the reasons that, again, there was none of the [00:19:33] Speaker 04: If you leave that aside, the defendant still shouldn't have been severed because of the fact that they didn't show the prejudice required from her testimony, because the limiting instructions going to fix all of this. [00:19:44] Speaker 04: And so I think those would be my three responses to that particular point. [00:19:49] Speaker 04: The court has already talked about conditional nature. [00:19:52] Speaker 04: Their motion suggests she's going to be tried first. [00:19:55] Speaker 04: The affidavit itself suggests that it's conditional whether she would testify at all, and that's what the district court found when it said she would be able to, not that she necessarily would. [00:20:04] Speaker 04: And then the allegations, what she offered was vague and conclusory. [00:20:08] Speaker 04: She didn't even say, the bartender here is going to testify that there was confession, and I would testify that there wasn't. [00:20:14] Speaker 04: She didn't even offer that. [00:20:17] Speaker 04: She had to offer some details. [00:20:19] Speaker 00: But even if she had offered details and said... Well, she did say that the alleged conversation flatly contradicts and is entirely inconsistent with what Ms. [00:20:28] Speaker 00: Grimley and the bartender claim. [00:20:30] Speaker 04: It's just a conclusory allegation. [00:20:31] Speaker 04: I'm going to say something different than what they say, and she doesn't provide what that's going to be. [00:20:36] Speaker 04: I think that's insufficient, Your Honor. [00:20:39] Speaker 00: But even if she had given detail, say that she had said in her affidavit... You have some case laws that support that this much detail isn't sufficient? [00:20:48] Speaker 00: She's got to say exactly how her testimony would have been inconsistent? [00:20:53] Speaker 04: Yeah, I believe the... [00:20:55] Speaker 04: I think it's the Persley case that we cite. [00:20:58] Speaker 04: I think we point out in our brief how the allegations there were even stronger, and this court found that that was not enough. [00:21:05] Speaker 04: But even if she was going to say, yeah, the bartender said that he heard that Mr. Rudolph killed his wife for her, but actually we're talking about this FBI investigation, that still wouldn't have swayed the severance calculus here because there was mountains of impeachment against her. [00:21:21] Speaker 04: and she had serious credibility problems from her financial and intimate ties with Mr. Rudolph, indeed her dependency on Mr. Rudolph for her finances. [00:21:29] Speaker 04: As this court said, and personally, if the co-defendant's proposed testimony lacks sufficient exculpatory content or has serious credibility problems, severance is generally not going to be required. [00:21:40] Speaker 04: And finally, had she said that, that would have been contradictory to Mark Swanepoel's testimony that he didn't actually tell Rudolph about the investigation, which is who Rudolph said he found out about this from, until the summer of 2020 when Rudolph's son was reached out to by the FBI and Rudolph reached out to him. [00:21:59] Speaker 04: That was after this pre-COVID confession. [00:22:03] Speaker 04: So I just don't think there should have been a severance based on her testimony. [00:22:07] Speaker 04: When it comes to Grimley, both in terms of response to Miller and offering response to Grimley's testimony and Grimley's testimony coming in, we had the limiting instructions. [00:22:18] Speaker 04: So that made it harmless. [00:22:20] Speaker 04: Also, the jury didn't believe Anna Grimley. [00:22:23] Speaker 04: Count 8 was fully based entirely on Anna Grimley's testimony about the ultimatum, and the jury acquitted. [00:22:29] Speaker 01: But the district court was originally making the decision to sever. [00:22:32] Speaker 01: He didn't know that. [00:22:34] Speaker 04: No, we didn't, but that goes to the harmlessness, Your Honor. [00:22:38] Speaker 04: And so that's still something that you would consider in the harmlessness analysis under this Court's precedence. [00:22:45] Speaker 04: Furthermore, even without the Laurie Milliron ultimatum, you had the Bianca Rudolph ultimatum, and that put him in the same position when it came to this litigation and the fact that a divorce needed to be occurring. [00:22:58] Speaker 04: With respect to Rachel Anders, again, the instruction was given throughout. [00:23:03] Speaker 04: Plus, much of the evidence from Rachel Anders was actually admissible against him. [00:23:09] Speaker 04: Much of her testimony was based not on statements, but based on her own knowledge. [00:23:13] Speaker 04: For instance, when she talked about Rudolph paying for her and Ms. [00:23:17] Speaker 04: Milliron's son to go to Cabo San Lucas, that wasn't based on a statement. [00:23:20] Speaker 04: That was based on her own information. [00:23:22] Speaker 04: And then when there were statements, some of those were admissible because they weren't actually hearsay. [00:23:27] Speaker 04: For instance, when Milliron called Mrs. Rudolph an ugly Italian B-word, that wasn't being offered to prove the truth of the insult, it was being offered to show that Mrs. Milliron was jealous. [00:23:41] Speaker 04: And that evidence was cumulative to a lot of evidence in their emails. [00:23:46] Speaker 04: The emails between Rudolph and Milliron showed that he was paying for these trips for her kids, and they showed that she was jealous of his wife. [00:23:55] Speaker 02: I want to ask about the Beyond This Testament statement to Ms. [00:24:00] Speaker 02: Olmstead. [00:24:02] Speaker 02: Those statements, specifically the question of the postnuptial agreement. [00:24:08] Speaker 02: Is it the government's theory of trying to, with the statements about how he knew how to do her name and that kind of thing, is the implication that he forged that agreement? [00:24:20] Speaker 02: I mean, what was the government's theory related to that evidence? [00:24:24] Speaker 04: Yes, the government's theory was that he had forged the signature on the post-nuptial agreement, but we did also then explain throughout argument that even if he hadn't forged that, even if her signature was valid, that there were all kinds of reasons to think the post-nuptial itself would not be enforceable under Arizona law. [00:24:40] Speaker 04: And then besides that, we pointed out [00:24:42] Speaker 04: Even if the post-nuptial was valid, he still had tons of motives to kill his wife because he still was going to have to pay her $2 million under the post-nuptial. [00:24:50] Speaker 04: He was still getting $4.8 million from the life insurance. [00:24:53] Speaker 04: He still was in this position where either his wife or Ms. [00:24:57] Speaker 04: Milliron was likely to blow up his Safari Club International litigation. [00:25:00] Speaker 04: So there were all kinds of reasons, and show that he had lied in federal court, so there were all sorts of reasons to kill his wife regardless of that. [00:25:07] Speaker 04: But that was the theory of those particular statements. [00:25:10] Speaker 02: Well, how does that square with the fact that Bianca, in that series of statements, also says she signed something? [00:25:17] Speaker 02: I mean, she specifically says that she was at the table and he basically had me sign something, which she worried about later, which was in effect the postnuptial agreement, right? [00:25:29] Speaker 04: I believe she said that he tried to force her to sign something. [00:25:33] Speaker 04: I don't believe she says that she actually ended up signing it. [00:25:36] Speaker 04: She says that he signed something in her name. [00:25:38] Speaker 04: That's what she told Olmsted. [00:25:40] Speaker 04: I'm not sure that's correct. [00:25:42] Speaker 04: Huh, okay. [00:25:46] Speaker 04: And there was also a yellow note. [00:25:49] Speaker 04: So there's a yellow note paper that's signed that looks like this pre-post-nuptial agreement. [00:25:55] Speaker 04: And then there's the post-nuptial agreement. [00:25:57] Speaker 04: So there was also more than one document. [00:25:59] Speaker 04: But regardless, those statements were properly admitted. [00:26:03] Speaker 04: And they were harmless even if they weren't properly admitted because of the other motive evidence. [00:26:09] Speaker 02: And the properly admitted related to [00:26:13] Speaker 02: the anticipatory notion that there would be a divorce proceeding that hadn't even taken place yet? [00:26:18] Speaker 04: That's correct, but the Supreme Court in Giles even talks about somebody stopping somebody from making a domestic abuse report, again implying that there's not actual litigation ongoing, but that that particular, that that again would stop something from proceeding. [00:26:35] Speaker 04: So I think that that's a recognition from the Supreme Court that that's appropriate. [00:26:38] Speaker 04: And then the DeHinza case from the Second Circuit also says that we don't want to wait until there's litigation ongoing for these, because that actually somewhat gives you an incentive to kill somebody before the litigation gets going. [00:26:49] Speaker 04: And so it's creating these perverse incentives. [00:26:52] Speaker 04: So that's, I don't believe, required that there's actually a proceeding ongoing for the 450. [00:26:55] Speaker 01: How is the 804b6 standard satisfied with respect to the statements that the government contends were going to blow up the defamation proceeding? [00:27:11] Speaker 04: So you mean statements five and six that were entered for the Safari Club International litigation? [00:27:16] Speaker 04: Yeah. [00:27:17] Speaker 04: So the evidence that, for one thing, the court could consider, well, the court can consider Ms. [00:27:28] Speaker 04: Rudolph's statements herself under Bouchelet. [00:27:30] Speaker 04: So that's something that certainly suffice to satisfy the Safari Club International litigation. [00:27:36] Speaker 04: And then the other evidence was that, [00:27:42] Speaker 04: Oh, sorry. [00:27:43] Speaker 04: We also had the statements that would not be under 804 v 6, Ms. [00:27:47] Speaker 04: Rudolph's statements that were Hillman future intent statements that said she was going to confront Rudolph about this. [00:27:56] Speaker 04: And so that proved it. [00:27:57] Speaker 04: And then his own testimony also proved that Bianca Rudolph had, in fact, lied in her deposition. [00:28:03] Speaker 04: She said that she was unaware of the affair with [00:28:06] Speaker 04: Ms. [00:28:06] Speaker 04: Milliron, he says in his testimony that she was aware with it, so that showed that she had lied about it. [00:28:12] Speaker 04: And when you had that timing from the Hillman statement that she was going to confront him and ask for the divorce, and then you time that with the fact that in July, he actually doesn't end the things with Milliron. [00:28:22] Speaker 04: He goes on a plane trip with her and orders the propofol. [00:28:27] Speaker 04: All of that timing and that evidence, I think, suggests that that could blow up the safari [00:28:32] Speaker 01: I thought the inquiry under 804b6 was much more discreet, right? [00:28:38] Speaker 01: So that you have to show by preponderance some evidence supporting an intent to prevent her from retestifying at the definite. [00:28:47] Speaker 01: She testified favorably for Mr. Rudolph. [00:28:49] Speaker 01: Sure. [00:28:50] Speaker 01: So I just want to make sure that I'm isolating the legal inquiry correctly and applying it to the correct fact. [00:28:56] Speaker 01: The legal inquiry seems to be focused on an intent, right? [00:29:00] Speaker 01: to prevent her from retestifying. [00:29:03] Speaker 01: And the facts are that she testified favorably, but there was some evidence that the government needed to show by preponderance that she was going to recant. [00:29:12] Speaker 04: Is that correct? [00:29:13] Speaker 04: I think that we didn't have to show that she was going to recant. [00:29:15] Speaker 04: And I think, again, that was the fact that she gives the deposition in July. [00:29:21] Speaker 04: She has told him, leave Laurie Millarne or I'm going to divorce you. [00:29:26] Speaker 04: And the fact that he doesn't leave Laurie Millarne suggests that perhaps she doesn't know that he's still with Laurie Millarne. [00:29:32] Speaker 04: But at some point, he's still going to have to make that choice between the two of them. [00:29:36] Speaker 04: And as long as the litigation is still ongoing, he's in that pickle that she could recant. [00:29:40] Speaker 04: And so I think that was enough of the court to find that, in fact, that was another of the reasons that he killed his wife. [00:29:47] Speaker 02: And what's your harmless error argument if we don't buy that? [00:29:51] Speaker 04: This would just be for Statements 5 and 6? [00:29:53] Speaker 04: Yes. [00:29:53] Speaker 04: So first of all, Statement 6, they didn't raise an open grief. [00:29:56] Speaker 04: I think it's waived. [00:29:59] Speaker 04: So statement five, is she conferring to him about his affair and he denied it until conferring with the miller and emails. [00:30:05] Speaker 04: That is basically the same thing as the stuff that came in under Hillman. [00:30:08] Speaker 04: The fact that she said she was going to do that. [00:30:11] Speaker 04: I think that is effectively cumulative. [00:30:14] Speaker 04: The fact that she said she was going to do it. [00:30:15] Speaker 04: the jury could infer that she was going to do it and likely would infer that. [00:30:19] Speaker 04: And so that statement is basically cumulative. [00:30:21] Speaker 04: And then his second statement, the one that I think is waived, he agreed to fire Milliron and break off the affair. [00:30:28] Speaker 04: I just don't see how that particular statement, in light of everything else that came into the trial, the forensic evidence, [00:30:36] Speaker 04: the other statements that were waived, the Lovelace statement, any of that, how that would have changed the result on either the wire fraud or the murder conviction. [00:30:45] Speaker 04: I see I'm out of time. [00:30:46] Speaker 04: Unless the court has further questions, I will sit down. [00:30:49] Speaker 04: No, thank you, counsel. [00:30:51] Speaker 02: One minute. [00:30:54] Speaker 03: Let me just start, if I may, with how my brother just ended, which is we preserved the ultimatum point on Ms. [00:31:02] Speaker 03: Olmsted in Statement 6. [00:31:03] Speaker 03: That's the whole basis of our initial brief and our rebuttal. [00:31:06] Speaker 03: And the government theory that [00:31:10] Speaker 03: somehow this post nuptial was forged. [00:31:12] Speaker 03: Their own experts said it wasn't forged. [00:31:15] Speaker 03: And the court was right when it asked, didn't Bianca Rudolph say that she signed it? [00:31:20] Speaker 03: Yes, she did in a handwritten note, which is at volume 18, page 4514 and volume 20. [00:31:28] Speaker 03: at page 1592. [00:31:30] Speaker 03: She admitted signing that postnuptial and the government experts said that she signed it. [00:31:37] Speaker 03: There was no divorce proceeding pending. [00:31:39] Speaker 03: There was no hypothetical divorce proceeding. [00:31:41] Speaker 03: There's no evidence that he killed her to prevent her from testifying in a divorce. [00:31:45] Speaker 03: or from changing her testimony at the Safari Club. [00:31:49] Speaker 03: There's just no evidence of that. [00:31:50] Speaker 03: It's all speculation. [00:31:52] Speaker 03: And under 804b6, that's just not enough. [00:31:56] Speaker 03: This was the ultimatum supposedly made by his [00:32:00] Speaker 03: It was the critical testimony. [00:32:03] Speaker 03: I'm not sure how it could ever be harmless that the decedent statement about an ultimatum, that was the government's case. [00:32:10] Speaker 03: It was the testimony in rebuttal that the government said, this is the most important testimony. [00:32:15] Speaker 03: So we believe in Larry Rudolph, and I'm so thankful that you had us argue here today, and we ask for the case to be reversed. [00:32:24] Speaker 03: Thank you so much. [00:32:27] Speaker 02: Thank you for refining Arguments Council.